Monthly Archives: January 2014

The Florida Probate Process: An In-depth Look

When a person passes away and their assets must be identified, gathered and distributed to their beneficiaries and their debts settled, their estate goes through a court supervised process known as probate. In this process, the assets of the deceased individual (also known as the decedent) are first identified and inventory, then used to first pay for the cost of the probate proceeding, and then used to pay any outstanding debts on the decedent’s behalf. Finally, the remainder of the estate is distributed to the beneficiaries of the decedent.

The probate process within the state of Florida is covered under the Florida Probate Code as found in Chapters 731 through 735 of the Florida Statutes. The Florida Probate Rules, Part I and Part II (Rules 5.010-5.530) also cover the rules governing probate proceedings throughout the state of Florida.

Examining the Need for Probate

The probate process is a necessary task for transferring ownership of the decedent’s assets to their beneficiaries. Probate ensures a smooth and orderly transfer of probate assets to the decedent’s beneficiaries, given a valid last will and testament is involved. Otherwise, probate becomes necessary to pass ownership of the estate’s assets as dictated under Florida law if the decedent did not leave behind a will.

The probate process is also necessary to settle the financial affairs of the decedent after he or she passes away. Proper administration allows for creditors to be duly compensated for any debts left behind by the decedent, thus settling financial matters and allowing for the beneficiaries to receive the decedent’s probate assets. The probate has a responsibility to pay the legitimate debts of the decedent prior to disposing the estate to its beneficiaries.

Anyone who is nominated as a personal representative of the probate estate should always seek the counsel and assistance of a qualified attorney. Any number of legal issues can arise during the course of probate proceedings, which is why it is so important to have someone on hand who is familiar with the challenges often presented to the probate process. The personal representative’s attorney is tasked with representing that person only and not the beneficiaries of the probate estate.

Occasionally, there may be a provision in the will mandating a particular law firm or lawyer for the personal representative. These provisions are not legally binding, which leaves the personal representative free to choose any lawyer they wish to assist in the process.

Probate Procedures Explained

Probate proceedings are supervised by a circuit court judge. The judge is responsible for determining the validity of the decedent’s will as well as confirming the identity of the heirs to the probate estate. The judge will also decide whether the personal representative nominated in the decedent’s will is qualified to serve under that capacity. Those who pass muster will receive “Letters of Administration” as evidence of their authority to administer the estate.

The state of Florida offers four types of probate procedures:

Full administration — This is the most common type of probate procedure and is often considered the standard administration process. To summarize the process, it involves naming an executor to the estate as well as the petitioning of the report for administration. Both a case number and file are created for this process, while notification of all beneficiaries, known creditors and unknown creditors takes place. The full administration process also involves inventorying all property related to the estate as well as paying creditors and distributing the estate to the heirs as listed in a will.

Summary administration — This procedure is only available if the value of the estate involved in the probate process does not exceed $75,000 and if the decedent’s debts are either paid in full or if the creditors do not object to the process. This excludes property that is exempt from creditor claims such as homestead property. Those who receive estate assets using this procedure usually remain responsible for claims against the decedent for a two-year period after the date of death. As a result, this procedure is best used in cases where the decedent has been deceased for over two years with no prior administration of the estate in question, as this effectively cuts off all claims by most creditors.

Disposition without administration — This probate procedure is available in cases where estate assets consist only of property that is exempt from creditor claims by law and nonexempt personal property whose value is less than up to $6,000 in funeral expenses and the amount of medical and hospital expenses incurred during the last 60 days of the decedent’s final illness, if applicable. Although it’s recommended that a lawyer assist in the process, these procedures are usually carried out without their assistance. While the above provides a brief explanation of the process, the exact procedure varies among other counties.

Ancillary administration — This form of administration applies if the decedent owns property within the state of Florida but dies a resident of a state other than Florida and their will is probated in their state of residence. Steps in the state of residence does not have jurisdiction over real property located in Florida, a court file must be opened in the state of Florida and a Florida court must enter orders regarding the distribution of the property in question.

The time it takes for the probate process to conclude depends on each individual case – due to a wide variety of factors, it may take some probate administrations longer to conclude than others. At minimum, a probate estate must remain open for at least three months to allow any creditors to make their claims. A simple probate estate may take anywhere from five to six months to conclude.

In addition to the circuit court judge, personal representative and the attorney providing legal assistance to the representative, other interested parties may be involved in the probate process. For instance, the Internal Revenue Service (IRS) may become involved as a creditor to claim any federal income taxes owed by the decedent as well as taxes owed by the probate estate, among other tax matters.

Defining Probate Assets

Probate assets are generally defined as those owned by the decedent at the time of his or her death. For instance, a bank account or investment account in the decedent’s sole name is considered a probate asset. However, a bank account or investment account that is payable or transferable on death to another individual or jointly held with rights of survivorship is not considered a probate asset.

Probate assets may also include those owned by the decedent with one or more co-owners without an automatic succession of ownership at death. Life insurance policies, individual retirement accounts and annuity contracts payable to the decedent’s estate, along with real estate titled in the decedent’s sole name are also probate assets.

According to Florida law, the surviving spouse and children of the decedent are protected from total disinheritance, giving them the opportunity to receive assets from the decedent’s probate estate.

Non-probate Assets

Some assets belonging to the decedent may be passed on to heirs, spouses or beneficiaries without the need for probate court approval. These assets commonly include:

  • Assets held as part of a living trust
  • Assets with a designated beneficiary, including a POD bank account, processes of a life insurance policy or a retirement account.
  • Property held in joint tenancy, such as a shared bank account or a house owned by a couple.